June 13, 2012

Former prosecutor urging clemency for murderer he sent to Ohio's death row

As helpful reader alerted me to this notable new AP article, headlined "Prosecutor seeks mercy for condemned Ohio killer," discussing a clemency hearing for an Ohio death row inmate scheduled to be executed next month. Here are the interesting details:

The prosecutor who helped send the killer of a Youngstown store owner to death row told the state Parole Board on Tuesday that the condemned inmate should be spared because the crime didn't rise to the "heinous" level that deserves capital punishment.

Former Mahoning County prosecutor Gary Van Brocklin said he tried repeatedly to get John Eley to testify against another man he believes is the mastermind of the 1986 shooting in exchange for a lesser sentence. That other man, Melvin Green, gave Eley the gun used in the shooting and told him to go into the store, which had banned Green for previous threats, Van Brocklin said via a video interview presented to the parole board. "Basically, he set up the entire robbery," Van Brocklin said.

He also said that, while not making light of the death of store owner Ihsan Aydah, the robbery of the convenience store was the type of killing that was prosecuted more frequently as a death penalty case in the early days of the law. Ohio's current capital punishment law was enacted in 1981. "It wasn't in the more heinous nature of cases that now receive the death penalty," Van Brocklin said.

It's not unusual for judges or prosecutors to change their mind about individual cases or the death penalty itself, but such testimony on behalf of a condemned inmate is relatively rare.

Eley, 63, is scheduled to die by injection July 26 for the shooting at the Sinjil Market on Aug. 26, 1986. Eley confessed to the killing to police and invoked his Fifth Amendment right to refuse to testify against Green, who was acquitted. "I don't want to go through all this ritual," Eley told a court psychologist in 1987, according to a written presentation to the board by Paul Gains, the current Mahoning County prosecutor, who opposes clemency. "I did it. I want to do my time," Eley said in that interview. "I don't want to talk about it. I'm sorry I did it, that's all."...

Scott Krichbaum, who represented Green at trial in 1987, said Tuesday that the state had enough to charge Green but not to convict him. "It's a common tactic to blame the other guy," Krichbaum, now a Mahoning County judge, said in a phone interview. "That's pretty standard in criminal defense."

Eley's attorneys based their argument for clemency around Green's role in the shooting. They also presented evidence that Eley came from an impoverished childhood, abused alcohol and drugs, had brain impairment and is mentally disabled and mentally ill.

Gains says Eley was a career criminal who showed no remorse over the shooting and whose IQ of 82 is well above the threshold of mental disability. Gains presented evidence to the board that Eley withdrew his claim of mental disability eight years ago and that psychological reports from the trial draw opposite conclusions about mental illness and mental disability.

Gains noted Eley had already been to prison twice by the time of Aydah's slaying. "And where Eley's attorneys now say that Melvin Green should be blamed for the crime, the evidence is unrebutted that Eley was the shooter, and that Eley went into the store alone while Green waited outside for Eley to subdue Mr. Aydah," Gains said in his board filing.

It will be very interesting to see what kind of recommendation the seven-member Ohio Parole Board makes in light of this former prosecutor's testimony, and also to see how Gov Kasich responds to that recommendation.

As I have noted in this space before, Gov Kasich has already established an interesting clemency record in capital and other cases during his first 18 months as Ohio's Governor, and one has to think that just about everything full of political significance in Ohio may get extra attention this political summer. In other words, this is yet another interesting death penalty story worth watching closely in the weeks ahead.

Comments

WE'll see what the spineless governor does here. This guy needs to be put down.

Posted by: federalist | Jun 13, 2012 3:53:40 PM

Federalist - Do you believe those convicted of 2nd degree murder and manslaughter should be put to death? How 'bout involuntary manslaughter? Jay-walking?

Posted by: Calif. Capital Defense Counsel | Jun 13, 2012 4:04:12 PM

Calif. Capital Defense Counsel,

I won't speak for Federalist, but I would personally put the line where death is highly deserved at burglary of an unoccupied dwelling where the goods taken total $100 or more. I have no problem with execution for thefts ranging down to the low double digits in value, only when you reach the range of single digit values would I start to become queasy about imposing a death sentence.

By the time you are talking about someone who is willing to simply walk into a store and shoot someone without some sort of extreme provocation, I would say absolutely that offender should be executed. I'm not much interested in life circumstances mitigation, though I can see cases where the sort of extreme provocation I brought up - the murder victim taunting the offender about an affair he is carrying on with the offender's wife as an example of the sort of thing I am thinking of -- should certainly be taken into account.

Posted by: Soronel Haetir | Jun 13, 2012 5:52:21 PM

There is no doubt in my mind, CCDC, that Eley richly deserves his punishment. Note the ghastly comment of the wuss prosecutor--discounting the murder of store clerks.

Posted by: federalist | Jun 13, 2012 8:33:30 PM

"discounting the murder of store clerks"

The "ghastly" comment by the "wuss" prosecution was an opinion on "the more heinous nature of cases that now receive the death penalty."

All murders, including of "store clerks," don't get the death penalty. f. might want them too -- he is after all a fan of mandatory sentences when few legislatures want to go that route even if given the chance -- but they are not.

"ghastly" and "wuss" here is applied to what a prosecutor is honestly stating is the state of the law at the moment.

"ghastly" and "wuss" here is applied to what a prosecutor is honestly stating is the state of the law at the moment--

Really, the state of the law, or the state of squishy prosecutors?

Posted by: federalist | Jun 13, 2012 11:42:15 PM

"Squishy prosecutors" is not a word I would apply to a former prosecutor who stated the "water is wet" statement that only a small segment of murders are generally understood to be worthy of the death penalty.

Until the law changes to fit your wishes, such is the case. This doesn't diminish the murders. He isn't saying store clerks don't matter. But, if you wish, continue your emotional shots at being you disagree with.

"It wasn't in the more heinous nature of cases that now receive the death penalty," Van Brocklin said.

"another man he believes is the mastermind...Melvin Green"

Then, Van Broklin's concern for justice should compel him to work toward "[t]hat other man" being duly punished.

Posted by: Adamakis | Jun 14, 2012 8:32:59 AM

"'Squishy prosecutors' is not a word I would apply to a former prosecutor who stated the 'water is wet' statement that only a small segment of murders are generally understood to be worthy of the death penalty."

Note the change--at first it was the state of the law, now it's what is supposedly generally understood. And if you're going to characterize my comments, let get things right--i never said that the guy said that the clerk "didn't matter"--i said "discounting". There's a lot of subtle dishonesty in what you write. Not surprising.

Posted by: federalist | Jun 14, 2012 10:03:46 AM

Doug, you often express more or less unqualified enthusiasm for the use of the death penalty as leverage in plea negotiations, to extract convictions or testimony from defendants, even where a death sentence is not the appropriate punishment for the defendant. In light of that oft-expressed enthusiasm, this case has the look of one that should give you some pause.

Aside from the fact such coercion can induce guilty pleas from even those who are innocent or have a solid case for justification/excuse (but are not willing to roll the dice with their life in front of a jury), you also have the cases like this one where the prosecutor, perhaps, indicts capitally just to get the less-culpable defendant to roll, but the defendant won't roll so he ends up with a death sentence, even though the prosecutor never thought he was the one who deserved it.

Posted by: Anon | Jun 15, 2012 3:18:05 PM

Anon,

Could it not be that both deserve it? As I see it, whatever confluence of forces motivated Mr. Eley to walk into that store and pull the trigger is more than sufficient cause for him to forfeit his life. Whether the state could prove its case, or indeed whether any such case even existed at all, against Green is entirely immaterial to the outcome Eley has earned.

Posted by: Soronel Haetir | Jun 15, 2012 6:37:58 PM

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